Jury Still Out on Bosnian War Crimes Tribunal Created by U.N. : Balkans: Slow start, politics and lack of finances imperil attempt to bring perpetrators of atrocities to justice.

STANLEY MEISLERTIMES STAFF WRITER

The facts are clear: In May and June of 1992, Serbian police, soldiers and Chetniks rounded up thousands of Muslims and some Croats from the river town of Brcko in northern Bosnia-Herzegovina and killed, tortured, mutilated or raped most of them.

Monika, a young Serbian woman in her early 20s, the daughter of a well-known prostitute, supervised some of the torture in the river warehouse that served as the prison.

She relished watching young, handsome male prisoners sodomize each other under threat of death; she led a posse that rounded up teen-age girls in town for the pleasure of the prison commander and his aides.

The Chetniks--bands of ultranationalist Serbian irregulars--carved crosses into the foreheads of half the Muslim prisoners; 50 men were castrated.

In all, perhaps 3,000 victims--all but a handful men, all but a handful Muslim--were executed. Their bodies first were dumped in the Sava River. Later, guards disposed of the bodies in boiling vats.

All these grisly details have been compiled by U.S. State Department investigators and turned over to the U.N. Security Council for eventual use by the prosecutor of the U.N. War Crimes Tribunal.

Yet--though the facts are clear--it is still by no means certain that any of the guilty at Brcko and other stricken towns will ever be punished.

U.S. officials managed to amass such excruciating detail about Brcko because the Serbs there had no reason to hide their savagery. They wanted to panic Muslims into flight.

Brcko--a town of 85,000 dominated by a plurality of Muslims--is a strategic crossroads and river town on a stretch of land connecting Serbia with the Serb-dominated areas of Bosnia.

In the sickening phrase that now epitomizes the war in Bosnia-Herzegovina, Brcko had to be "ethnically cleansed" so Serbs would no longer be separated by a stretch of land dominated by others. The Serbian commander and torturers apparently acted with impunity, with the cold confidence that no one had the right or means to heap retribution upon them.

But retribution could come.

Since the terrible days of Brcko's torment, the Security Council has created the War Crimes Tribunal and charged it with condemning and punishing the perpetrators of this and other crimes in the war in the former Yugoslav federation.

Although the Serbs face the bulk of the accusations, including "ethnic cleansing" as a deliberate policy, Croatian and Muslim units have also been blamed for war crimes.

After some squabbling, the council has chosen a prosecutor. The judges of the tribunal have held their first meeting in The Hague in the Netherlands. A Commission of Experts is assembling details for a sweeping report on the bestiality in Bosnia.

But some human rights advocates are worried.

The prosecutor, Atty. Gen. Ramon Escovar Salom of Venezuela, will probably not even start work until February. No one is sure whether he will pursue leads aggressively. There is even a fear that the tribunal may be bartered out of existence in a future peace settlement.

Kenneth Roth, executive director of Human Rights Watch, observes that the U.N. process is "going very slowly. The good news is that the tribunal has been established and at long last a prosecutor has been named. The bad news is that the prosecutor hasn't even gotten to The Hague (except for the ceremonial opening) to hire a staff, and there's no money to do it even if he was available. I have great doubts of the commitment of the U.N. to make the tribunal a reality."

But U.S. Ambassador Madeleine Albright, one of the tribunal's staunchest defenders at the U.N., insists that the tribunal will succeed and "will establish the historical record before the guilty can reinvent the truth."

Albright, who has described the killing in Bosnia as "Europe's most systematic butchery since the Nazis during World War II," acknowledges that governments will probably refuse to give up indicted citizens for trial at The Hague.

But she wrote in a recent newspaper article that "these sheltered fugitives will become international pariahs, subject to immediate detention and extradition by any country."

An American lawyer who has collected war crimes evidence for the United Nations says, "The War Crimes Tribunal will be regarded as successful if the people who gave the orders are at least indicted and made to live the life of Joseph Mengele."

The Clinton Administration's attitude may be critical. The U.S. government first proposed the War Crimes Tribunal, and Albright worked hard to ensure that the Security Council put life into it.

No other government has come anywhere near supplying as much evidence to the Security Council as the United States.

The White House has appointed an interagency committee to assemble even more evidence, some of it classified, for the prosecutor. The Administration also plans to lend U.S. government lawyers and investigators to the prosecutor if needed.

Yet Albright played only a passive role in the Security Council selection of a prosecutor. She let Europe and the developing world fight it out until they agreed on the compromise candidate Escovar in October.

He has disappointed American officials by failing to take up his post quickly.

"We had hoped to have him on the job by mid-December," a State Department official says. "But his plans seem to have evolved--to put it politely."

Escovar--whose term as Venezuelan attorney general does not end until February--evidently intends to hang on in Caracas to put finishing touches on his corruption case against former President Carlos Andres Perez.

"This is no way to conduct a murder investigation," says Roth of Human Rights Watch, "let alone a mass-murder investigation."

The Bosnian War Crimes Tribunal, authorized by the Security Council last May, is an unprecedented creation in international law.

"It is a breakthrough," Secretary General Boutros Boutros-Ghali said in a recent interview. "For the first time, a tribunal is created by the international community and not by the country that won the war."

The United States and its allies tried and convicted Nazi war criminals in Nuremberg and Japanese war criminals in Tokyo after World War II. But these proceedings were set up by the victorious powers after the defendants surrendered.

The tribunal has 11 judges, including former U.S. District Judge Gabrielle Kirk McDonald of Texas, all elected by the General Assembly. McDonald, appointed to the District Court by President Jimmy Carter in 1979, was the first black person to serve on the federal bench in Texas.

Under the rules set out by the Security Council, the tribunal cannot hold any trials without the defendant present. Since Serbia and the other states are unlikely to release their citizens to the tribunal unless forced to, most human rights officials do not expect many trials.

That makes the power of indictment all important.

Under the rules, Escovar has the sole authority to prepare an indictment and send it to one of the judges for approval. If satisfied there is enough evidence to warrant a trial, the judge will confirm the indictment.

The rules of procedure have not yet been set down by the judges. But most outsiders assume that the indictments will then be made public.

The American lawyer involved in collecting evidence says the process will work "if they make the indictment proceedings public. . . . Only in that way will the public be aware of the horrors."

An aggressive prosecutor should be able to prepare a large number of indictments.

In the case of Brcko, for example, investigators know the full name of sadistic Monika and have the signature of the camp commander on papers handed to released prisoners.

Although the physical evidence of what happened at the camp has probably disappeared, the prosecutor can obtain sworn statements easily from witnesses who are now refugees. But investigators still cannot prove who on-high ordered the roundup, torture and execution of the Muslims and Croats.

Much may depend on what judges allow as evidence.

"The judges have to decide," says Cherif Bassiouni, an Egyptian-born American law professor who now heads the Commission of Experts collecting evidence. "The moment they decide, then we will know how to put cases together."

In the last few days of the Bush Administration, an infuriated Secretary of State Lawrence S. Eagleburger said Serbian President Slobodan Milosevic, Bosnian Serb leader Radovan Karadzic and other Serbian leaders should be put on trial as war criminals.

There will be disappointment among human rights officials if prosecutor Escovar fails to indict some of these leaders.

While it may be difficult to find evidence that any of them ordered the roundup and executions in Brcko, the prosecutor may be able to base an indictment of high officials on more obvious crimes.

Investigators should have enough evidence, for example, to make a case that the Serbs are bombarding civilian populations of Sarajevo as a matter of policy--clearly a war crime.

The delay over the Security Council's appointment of a prosecutor had dispirited many human rights officials.

In August, the British proposed Scottish Atty. Gen. John Duncan Lowe. Meanwhile, some Third World ambassadors, supported by the United States, proposed Bassiouni, the 57-year-old De Paul University law professor who was a member of the U.N. Commission of Experts that was set up a year earlier to amass evidence of war crimes in the former Yugoslavia.

Since Bosnia regards Britain as the main force behind the European refusal to intervene and stop Serbian aggression, Bosnian officials and their supporters were aghast at the idea of a British prosecutor.

On the other hand, Britain and its allies feared that Bassiouni would rush out with embarrassing indictments that might wreck peace negotiations.

In informal polling, neither man could command more than seven votes--one short of a council majority.

Boutros-Ghali tried to force the issue by nominating Bassiouni in the last week of August.

Albright could have tried to pressure some ambassador to switch to Bassiouni, putting him over the top. But she decided to go along with ambassadors who believed that the prosecutor should be selected by unanimous vote--to ensure that the individual gained international respect and standing.

Britain and its European allies vetoed Bassiouni.

The secretary general then nominated former Indian Atty. Gen. Soli Jenhangir Sorabjee, who was reportedly vetoed by Pakistan.

Finally, the secretary general nominated Escovar, 67, a former foreign minister, who drew no objection from any of the 15 weary Security Council members.

Around the time he nominated Escovar, Boutros-Ghali appointed Bassiouni as chairman of the Commission of Experts. The previous chairman, Frits Kalshoven, a Dutch law professor, had resigned a few weeks earlier, accusing Britain, France, Germany and Italy of refusing to cooperate with the commission's collection of evidence.

The commission was also hampered by lack of funds.

It functioned mainly because the George Soros Foundation came close to matching the $900,000 budgeted by the United Nations.

"The John Gotti (N.Y. mob) trial and investigation cost the U.S. government $75 million," says Bassiouni, who used the facilities of De Paul University's law school and a staff of unpaid lawyers to collect the grim data. "How can you investigate an alleged 200,000 dead, up to 30,000 raped and thousands of tortured with $900,000?"

Bassiouni intends to present the prosecutor in a few months with a mass of evidence--"We have enough material to keep a hundred lawyers busy for years"--and with a sweeping picture of war crimes and "ethnic cleansing."

"You need an entity like the Commission of Experts to paint a big picture," he says. "Then you need to take out of that big picture the individual cases. Without the big picture, it doesn't do any good to have 20 indictments and go home. 'Ethnic cleansing' will not be proven."

Yet a report from the Commission of Experts--even if it is as sweeping and resounding as the U.N. Truth Commission report on the terror in El Salvador in the 1980s--will not satisfy everyone.

There is a gnawing fear that the War Crimes Tribunal could be sacrificed in negotiations for a peace settlement.

Serbia and the Bosnian Serbs, for example, might refuse to sign an agreement unless Milosevic and Karadzic were granted immunity from prosecution.

But the Administration insists that it will not go along with this.

In a speech to the International Rescue Committee in New York last month, Albright said: "Let me . . . make it clear to the skeptics that the Clinton Administration will not recognize--and we do not believe the international community will recognize--any deal or effort to grant immunity to those accused of war crimes."

BACKGROUND

Under its United Nations mandate, the new War Crimes Tribunal will have jurisdiction over war crimes, genocide and crimes against humanity in the territory of the former Yugoslav federation. War crimes include willful killing, torture, wanton destructions of towns and villages, bombardment of undefended towns and villages and unlawful deportation of civilians. Genocide is defined as "acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." Crimes against humanity are described as acts such as murder, deportation, torture and rape committed against civilians during a war. Much of what has gone on in Bosnia-Herzegovina fits in these categories.